Virginia-Carolina Power Co. v. Taylor

• Court: North Carolina Supreme Court
• Writing for the Court: STACY, C.J.
• Citation: Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646 (N.C. 1926)
• Decision Date: 03 March 1926
• Docket Number: 83.
• Parties: VIRGINIA-CAROLINA POWER CO. v. TAYLOR.

131 S.E. 646

191 N.C. 329

VIRGINIA-CAROLINA POWER CO. v. TAYLOR.

No. 83.

Supreme Court of North Carolina

March 3, 1926

Appeal from Superior Court, Northampton County; Dunn, Judge.

Ejectment by the Virginia-Carolina Power Company against Job Taylor. Judgment for plaintiff, and defendant appeals. New trial.

Civil action in ejectment brought to recover the possession of a tract of land, consisting of approximately 97 acres, and covered by the waters of Roanoke river, a nonnavigable stream, save a small island of about 5 acres, known as Sturgeon Island, located near the center of the stream.

The usual issues in ejectment were submitted to the jury and answered in favor of the plaintiff. From the judgment entered thereon, the defendant appeals, assigning errors.

Partition deeds between tenants in common operate only to sever unity of possession, and convey no title.

Travis & Travis, of Halifax, Burgwyn & Norfleet, of Jackson, and Daniel & Daniel, of Weldon, for appellant.

Geo. C Green, of Weldon, for appellee.

STACY C.J.

The case at bar has been tried twice in the superior court, and this is the second appeal here. See former opinion as reported in 124 S.E. 634, 188 N.C. 351, for fuller statement of the facts. And, desirable as an ending of the litigation may be, there are several exceptions, appearing on the present record, which seem to necessitate another hearing.

The land in question consists of approximately 97 acres in the bed of Roanoke river, a nonnavigable stream, and includes a small island of about 5 acres capable of cultivation, known as Sturgeon Island. The plaintiff claims title under a grant issued by the state to William Eaton in 1790, and mesne conveyances connecting the plaintiff with said grant. Mobley v. Griffin, 10 S.E. 142, 104 N.C. 112. The defendant, on the other hand, claims title by adverse possession, and, on the hearing, undertook to show such possession (1) for 7 years under color, and (2) for twenty years without color, either method being sufficient to establish title in this jurisdiction. C. S. §§ 428 and 430.

There was evidence on behalf of the defendant that part of the land, including Sturgeon Island, was at one time held by Samuel Miles, the defendant's predecessor in title. And in order to rebut this testimony the plaintiff introduced two alleged leases from Wilkins & Broadnax, under whom the plaintiff claims, to Samuel Miles, for the purpose of showing that said Miles held the land as tenant and not in his own right or adversely to the plaintiff's predecessor in title. The last of these alleged leases expired January 1 1868.

The defendant denied the execution and delivery of these leases. There was evidence tending to show that the signatures of Samule Miles to said leases were in his handwriting, and that the leases were found among the papers of E. W. Wilkins, one of the alleged lessors. Upon this showing the court ruled and announced from the bench in the presence of the jury "that Samuel Miles was the tenant of Wilkins & Broadnax and held possession of Sturgeon Island and the fish slides as such during the term covered by the leases admitted in evidence."

This ruling was erroneous and prejudicial to the defendant. The leases were denied; hence it was a question for the jury to say whether they were genuine and whether the relation of landlord and tenant existed between Wilkins & Broadnax and Samuel Miles. Dobbins v. Dobbins, 53 S.E. 870, 141 N.C. 210, 10 L. R. A. (N. S.) 185, 115 Am. St. Rep. 682; Smith v. Lbr. Co., 53 S.E. 233, 140 N.C. 375.

After the above ruling, his honor further held that--

"Any acts of possession by Samuel Miles or any one claiming under him during the...